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ELCPartially AllowedNot stated in the judgment text provided· [2022] KEELC 3687 (KLR)

Sparkle Properties Limited v National Land Commission & another (Environment & Land Petition 43 of 2021) [2022] KEELC 3687 (KLR)

Environment and Land Court
27 July 2022
3,967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Sparkle Properties Limited petitioned the Environment and Land Court at Mombasa, alleging that its land, L.R. No. 1956/506 in Voi, was compulsorily acquired in 2014 for the Mombasa-Nairobi Standard Gauge Railway without prompt, full and just compensation, in violation of Articles 40, 47 and 50 of the Constitution. The National Land Commission (1st Respondent) was served but filed no response. The Kenya Railways Corporation (2nd Respondent) denied liability, contending that under Section 125(1) of the Land Act the obligation to pay compensation lies exclusively with the Commission, and that it had remitted compensation funds, including the Petitioner's award of Kshs 192,015,974, to the Commission on 2nd July 2021. The court held that the acquisition was for a public purpose but that the Petitioner's rights were infringed by the non-payment, that liability rests solely on the National Land Commission, and that the Commission's delay was partly explained by the pending ownership dispute in ELC No. 265 of 2013, determined in the Petitioner's favour on 24th February 2020. The Petition was partially allowed: declarations of violation and of compulsory acquisition were issued, and the Petitioner was declared entitled to Kshs 192,015,974. However, interest from 21st May 2015 was refused because ownership had not then been determined, and general, exemplary and aggravated damages were refused as unproved. The 1st Respondent was ordered to bear the costs.

Key legal issues

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01

Violation of the right to property and fair administrative action in compulsory acquisition without prompt compensation

Holding

The Petitioner's rights under Articles 40 and 47 were infringed by the 1st Respondent's failure to pay compensation for over six years after acquisition

Reasoning

Article 40(3) permits deprivation of property only for a public purpose with prompt payment in full of just compensation. The land was acquired for the SGR in 2014-2015, possession taken, yet the award of Kshs 192,015,974 was never disbursed to the Petitioner despite funds being remitted by the 2nd Respondent, constituting a blatant infringement.

p. 3
02

Allocation of liability for compensation between the National Land Commission and the acquiring body

Holding

Liability falls exclusively on the National Land Commission; the Kenya Railways Corporation, having remitted the funds, bears no liability

Reasoning

Section 111(1A) of the Land Act requires the acquiring body to deposit compensation funds with the Commission before acquisition, while Sections 113, 114, 117(1) and 125(1) place the duty to pay compensation on the Commission. The 2nd Respondent remitted the funds on 2nd July 2021 and the Commission confirmed receipt, so the payment obligation rests on the 1st Respondent alone.

p. 4
03

Entitlement to the award and interest

Holding

The Petitioner is entitled to the award of Kshs 192,015,974 but not interest from 21st May 2015

Reasoning

The ownership dispute in ELC No. 265 of 2013 delayed disbursement, and the 1st Respondent had indicated in its letter of 11th January 2016 that money would be disbursed upon determination of proprietorship by the court, which occurred on 24th February 2020; interest from 2015 was therefore not payable.

Legal principles established

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  • The National Land Commission bears the statutory responsibility to pay full, prompt and just compensation for compulsorily acquired land, including interest
  • Where the Commission fails to pay before the acquiring authority takes possession, the obligation to ensure payment falls squarely on the Commission

Court orders

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  1. 1.A declaration that the Petitioner's fundamental rights and freedoms as enshrined under Articles 40(1), 40(2)(a), 40(3)(b)(i), 47 and 47(2) of the Constitution of Kenya 2010 have been contravened and infringed upon by the 1st Respondent
  2. 2.A declaration that the Petitioner's proprietary interest in L.R. No.1956/506 situate in Voi, within Taita-Taveta County, was compulsorily acquired by the State
  3. 3.A declaration that the Petitioner is entitled to prompt, full and fair compensation within the tenor of Articles 40(3)(b)(i) in the sum of Kshs 192,015,974/=
  4. 4.The 1st Respondent to bear the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(b), 40, 40(1), 40(2)(a), 40(3), 40(3)(b)(i), 47, 47(2), 50(1), 67, 68(v), 23(3)
  • Land Act, No. 6 of 2012Sections 107(1), 111, 111(1A), 112, 113, 114, 115, 117(1), 125(1), Part VIII
  • Land Acquisition Act, Cap 295 (Repealed)Section 9(1)
  • National Land Commission ActNot specified
  • Fair Administrative Action ActNot specified

Cases cited (4)

  • Republic v National Land Commission & 2 Others Ex-parte Samuel M. N. Mweru & 5 others
    (2018) eKLR
  • Patrick Musimbi vs National Land Commission & 4 Others
    Petition No. 613 of 2014
  • Horn v Sunderland Corporation
    (1941) 2KB 2640
  • Sparkle Properties Limited vs Johana Ngai & Others
    ELC Case No. 265 of 2013
Jurisdiction invoked
Articles 40, 47 and 50 of the Constitution of Kenya 2010 read with the Land Act, No. 6 of 2012 (enforcement of fundamental rights relating to compulsory acquisition of land)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sparkle Properties Limited v National Land Commission & another (Environment & Land Petition 43 of 2021) [2022] KEELC 3687 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3687/eng@2022-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.